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Name: People v. Lopez
Case #: F062740
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/22/2012

The gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(4)(C) authorizes a life sentence on a conviction for Penal Code section 136.1 (witness intimidation) only if a jury finds that the act was accompanied by an express or implied threat of force. A jury convicted appellant of murder and other crimes, including witness intimidation (Pen. Code, § 136.1, subd. (a)(2)), and found true section 186.22, subdivision (b)(1) enhancements. As to the intimidation crime, evidence was presented that during proceedings, in the court house, appellant walked by a witnesses called to testify and stated "F... snitches," or words to that…

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Name: People v. Gonzales
Case #: G044384
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/26/2011
Subsequent History: 12/14/11 rev. granted (S197036)

The substantive criminal street gang offense of Penal Code section 186.22, subdivision (a) applies in circumstances where an active gang participant acts alone. Gonzales, a Big Stanton gang member, was encountered parked in an area claimed by Big Stanton and a rival gang, and in possession of a loaded handgun and six baggies of methamphetamine. There was sufficient evidence to find him an active gang member, or that he was promoting, furthering or assisting in felonious activity by the gang, based on his actions alone. The expert's opinion was supported by Gonzales' statement that he bought the gun because the…

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Name: People v. Barajas
Case #: H036383
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 08/23/2011

A "gang area restriction" probation condition containing a knowledge requirement is not impermissibly vague or overbroad. The condition, "You are not to visit or remain in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity" is not vague. In People v. Leon (2010) 181 Cal.App.4th 943, 952, a knowledge condition was added by this same appellate court to avoid a constitutional challenge. In the antithesis of the argument in Leon, it was argued that a knowledge requirement is vague because of the possibility that a…

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Name: People v. Hunt
Case #: E050775
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 05/20/2011

A gang expert's testimony that any crime by a gang member is almost always for the benefit of the gang does not violate due process. The gang expert testified that intimidation and respect are everything to a gang. He was given a "mirror-image" hypothetical with the facts of the crime involving a robbery in which one of the men admitted that he committed the robbery of a Del Taco in order to pay his parking tickets. The expert gave the opinion that everything they do, even if personally motivated, would benefit the gang because it reaps the benefits of building…

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Name: Emery v. Clark
Case #: 08-55249
Court: US Court of Appeals
District 9 Cir
Opinion Date: 05/27/2011

The California Supreme Court's decision in People v. Albillar (2010) 51 Cal.4th 47 provided the authoritative interpretation of the gang enhancement in Penal Code section 186.22, subdivision (b)(1) and contrary interpretations by the Ninth Circuit are overruled. The specific intent to promote, further, or assist in any criminal conduct by a gang member is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be apart from the criminal conduct underlying the offense of conviction sought to be enhanced. The Ninth Circuit had certified questions to the California Supreme Court about whether the statute required section…

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Name: In re Daniel C.
Case #: A129408
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 05/26/2011

A gang expert's opinion that shoplifting alcohol would be gang related as "putting in work" for the gang is insufficient to invoke the gang enhancement. Daniel faced an allegation of robbery with personal use of a dangerous and deadly weapon, infliction of great bodily injury, and that the robbery was committed for the benefit of, at the direction of, and in association with a criminal street gang pursuant to Penal Code section 186.22, subdivision (b)(1)(C). Daniel was present in a store with two other gang members and they were all wearing red when they came to the attention of the…

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Name: People v. Albillar
Case #: S163905
Court: CA Supreme Court
District CalSup
Opinion Date: 12/20/2010

The offense of active gang participation (Pen. Code, sec. 186.22, subd. (a)) does not require that the felonious criminal conduct referred to in the statute be gang-related. Twin brothers and their cousin acted in concert to rape a female acquaintance. The three young men were members of the same gang. On appeal, they alleged there was insufficient evidence to support their convictions for the substantive gang offense as well as gang enhancements alleged in conjunction with the sex offenses. As to the gang offense, appellants claimed there was no evidence the felonious conduct they promoted was…

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Name: People v. Carr
Case #: B219279
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 11/23/2010

The criminal street gang special circumstance for murder (Pen. Code, sec. 190.2, subd. (a)(22)), requires knowledge that the gang's members engage in criminal activities but not subjective knowledge of particular crimes. Two people were murdered by a man riding a bicycle and witnesses placed appellant at the scene. He was convicted of the murders, and a gang enhancement and gang special circumstance allegation were found true. Appellant argued the gang allegations required reversal because it was not proven appellant had knowledge the gang was engaged in criminal activity. The appellate court noted that the gang special circumstance…

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Name: People v. Duarte
Case #: G041195
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 11/16/2010
Subsequent History: rev. granted 2/23/11 (S189174)

Where the underlying felony is used to satisfy the felonious conduct element of a street terrorism charge, Penal Code section 654 bars separate punishment. Appellant was convicted of discharging a firearm with gross negligence (Pen. Code, sec. 246.3, subd. (a)); being a felon in possession of a firearm (sec. 12021, subd. (a)(1)); and street terrorism (sec. 186.22, subd. (a)). Gang enhancements, and a prior "strike" conviction were also found true. The court sentenced him to 4 years for discharging a firearm; a 5-year term for the gang enhancement; 16 months for street terrorism; and 4 years for the firearm possession…

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Name: People v. Mesa
Case #: D056280
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/13/2010
Subsequent History: rev. granted 10/27/10 (S185688)

Because Penal Code section 186.22, subdivision (a) (crime of gang participation) involves distinct criminal objectives and different impacts from the underlying offense, punishment for both is not a violation of the proscription against multiple punishment under Penal Code section 654. Appellant, a gang member and convicted felon, challenged and then shot and wounded one victim on April 27, 2007; shot and wounded a separate victim two days later; and was found in possession of firearms and ammunition approximately a month later. A jury found him guilty of two counts of assault with a firearm…

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